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[2014] ZAGPJHC 87
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Qwabe v S (A419/2013) [2014] ZAGPJHC 87 (17 April 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE NO:
A419/2013
DATE: 17 APRIL
2014
NOT REPORTABLE
NOT
OF INTEREST TO OTHE JUDGES
In
the matter between:
SIPHO
QWABE
...................................................................................................
Appellant
and
THE
STATE
.........................................................................................................
Respondent
J U D G M E N T
MASHILE,
J
:
[1]
The Appellant stood before the regional court for the region of
South Gauteng held at Germiston charged with two counts of
rape of
C[…] M[…] and D[…] N[…]. The two
women were aged 24 and 22 respectively. They were
raped on 3
April and 31 October 2009. He was legally represented
throughout the duration of his trial and was warned that
the
provisions of
Section 51
of the
Criminal Law Amendment Act No. 105 of
1997
could become applicable for purposes of the imposition of
sentence should he be found guilty as charged.
[2]
Claiming that the sexual intercourse with both complainants was with
their consent, the Appellant pleaded not guilty.
On 6 March
2012, he was found guilty as charged and subsequently on the same day
sentenced to 14 years direct imprisonment on each
count. He was
also declared unfit to possess a firearm in terms of
Section 103
of
the
Firearm Controls Act No. 60 of 2000
. The Appellant sought
leave to appeal against sentence and the trial court granted it on 22
August 2012.
[3]
The minimum sentence legislation has changed the general approach to
the unfettered discretion that the trial court possessed
when
considering the imposition of sentence. The following passage
uplifted from
S v PB
2013 (2) SACR 533
(SCA) at 539 per Bosielo JA clearly marks the
turning point:
“
[20]
What then is the correct approach by a court on appeal against a
sentence imposed in terms of the Act? Can the appellate court
interfere with such a sentence imposed by the trial court's
exercising its discretion properly, simply because it is not the
sentence
which it would have imposed or that it finds shocking?
The approach to an appeal on sentence imposed in terms of the Act
should, in my view, be different to an approach to other sentences
imposed under the ordinary sentencing regime. This, in my view,
is so
because the minimum sentences to be imposed are ordained by the Act.
They cannot be departed from lightly or for flimsy reasons.
It
follows therefore that a proper enquiry on appeal is whether the
facts which were considered by the sentencing court are substantial
and compelling, or not.
”
[4]
The trial court considered the interest of society, the nature and
seriousness of the offence and correctly sought to strike
a balance
with the personal circumstances of the Appellant when determining the
sentence to be imposed. The personal circumstances
considered
by the trial court prior to imposing the sentence on each count of
rape were the following:
4.1
He was
37
years
old
at
the time
of
sentencing;
4.2
He was married and had four children aged between 1 -18 years old;
4.3
Prior to his arrest, he was employed as a security guard;
4.4
He was the sole breadwinner;
4.5
The appellant had no previous convictions.
[5]
Emphasising the seriousness and the prevalence of the offence, the
trial court went on to refer to the
Criminal Law Amendment Act No.
105 of 1997
setting out the provisions of
Section 51(2)
especially
the minimum sentences that would be applicable in the present case.
[6]
In search of substantial and compelling circumstances before imposing
the sentence, the trial court referred to
S
v Brofy and another
2007 (2) SACR 56
(W), which is an authority that the period spent whilst awaiting
trial should be taken into account when sentencing. Although
the trial court acknowledged this authority, it could not find that
the time spent in jail while awaiting trial and the personal
circumstances constituted substantial and compelling circumstances
warranting a deviation from the minimum sentence prescribed
by the
Criminal Law Amendment Act No. 105 of 1997
.
[7]
The Appellant stayed for a period of 2 years and 4 months in jail
while awaiting trial. The trial court felt that while
this was
so the seriousness of the offence, the violation of the complainants’
dignity and security weighed heavily in favour
of the imposition of
the minimum sentence. In this regard I agree that this is a
case where the personal circumstances of
an appellant should recede
and the seriousness, nature of the offence and the interest of the
society should come to the fore.
Accordingly, I do not find
fault with the imposition of a minimum sentence of 10 years direct
imprisonment on each count of rape.
[8]
The trial court mentioned the show of mercy as one of the elements
that should be considered when passing sentence but strangely
continued to exhibit the contrary to the Appellant by exceeding the
minimum sentence on each count by 4 years.
[9]
The
Criminal Law Amendment Act No. 105 of 1997
does grant a trial
court jurisdiction to exceed the minimum sentence by 5 years in
instances where this is pertinent. It
has been held that where
a trial court intends to exceed the prescribed sentence it needs to
extend an invitation to the counsel
to make submissions.
Furthermore, it cannot just pass a sentence that exceeds the minimum
sentence without giving reasons.
See in this regard
S
v Maake
2011
(1) SACR 263
(SCA)
.
[10]
In the present case there is no evidence on the record that the trial
court extended the invitation to the counsel to make
submissions in
case it passed sentence that was well in excess of the minimum
sentence besides, he did not even supply reasons
why he felt there
was a need to exceed it.
[11]
Against that background I make the following findings:
11.1
I agree that the trial court was correct in concluding that no
substantial and compelling circumstances were present warranting
a
departure from the minimum sentence;
11.2
The exceeding of the minimum sentence by 4 years on each count is in
violation of what was laid down in
S v
Maake (supra)
.
[12]
Accordingly, the appeal against sentence succeeds and I make the
following order:
1.
The sentence of the trial court is set aside and is substituted for:
1.1
The 14 years on Count 1 is reduced to 10 years direct imprisonment;
1.2
The 14 years on Count 2 is reduced to 10 years direct imprisonment.
_________________________________________
B
MASHILE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
I
Agree
_________________________
I
OPPERMAN
ACTING JUDGE OF
THE HIGH COURT
GAUTENG
LOCAL DIVISION,JOHANNESBURG
Heard:
27 March 2014
Judgment
delivered: 17 April 2014
Appearances:
For
Appellant: Adv EA Guarneri
Instructed
by: Johannesburg Justice Centre
For
Respondent: Adv LR Surendra
Instructed
by: Office of the Director of Public Prosecutions